## F I L E D United States Court of Appeals Tenth Circuit 

### November 23, 2005

Clerk of Court PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

MARY JANE BLOSSOM, in her personal capacity and as personal representative for the estate of Jeremy Ray Pickup, Plaintiff - Appellee,

v. JEFF YARBROUGH, in his personal capacity, and as Deputy Sheriff of Mayes County, Oklahoma, Defendant - Appellant, and FRANK CANTEY, in his personal capacity and as Sheriff of Mayes County, Oklahoma; MAYES COUNTY BOARD OF COUNTY COMMISSIONERS, Defendants. No. 03-5146

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA

(D.C. No. 02-CV-373-P)* After examining the briefs and appellate record, t his panel has determined

unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1 (G). The cause therefore is ordered submitted without oral argument. - 2 - Submitted on the briefs: * Dick A. Blakeley, Sutton and Associates, P.C., Tuls a, Oklahoma, for Plaintiff - Appellee. Robert S. Lafferrandre and Robert M. Anthony, Pierc e, Couch, Hendrickson, Baysinger & Green, L.L.P., Oklahoma City, Oklahoma, for Defendant - Appellant.

Before KELLY , HENRY , and MURPHY , Circuit Judges.

KELLY , Circuit Judge.

Defendant-Appellant Jeff Yarbrough appeals the district court’s denial of qualified immunity in connection with the shooting death of Jeremy Pickup. Mr. Pickup’s mother and personal representative, Plaint iff-Appellee Mary Jane Blossom, brought this civil rights action pursuant to § 1983, alleging unnecessary and excessive force. We exercise jurisdiction purs uant to 28 U.S.C. § 1291 and Mitchell v. Forsyth , 472 U.S. 511 (1972), and reverse.

Background At approximately 11 p.m. on June 30, 2001, Deputy J eff Yarbrough- 3 -

received a call from radio dispatch that there was an intoxicated person at Orchid Paper plant who refused to get out of someone’s car . Deputy Yarbrough, two miles away from the plant, responded to the call. Upon arriving at the parking lot in front of the plant, he turned on his emergency l ights and approached a small group of between six and eight people. As he appro ached, a large man, Mr. Pickup, walked away from the group. A woman shoute d, “That’s the guy right there.” Deputy Yarbrough identified himself as being with the Mayes County Sheriff’s Office and asked Mr. Pickup to stop so th at he could talk to him. The deputy also flashed his flashlight at Mr. Pickup. He continued to walk away from Deputy Yarbrough, who followed and caught up to Mr. Pickup. Mr. Pickup turned around, fists clenched, and mumbled somethin g about “Fucking cops.” The deputy again identified himself and asked Mr. P ickup who he was. He mumbled again about Deputy Yarbrough’s gun and cops “messing with him.” Yarbrough again asked Mr. Pickup for identification . Mr. Pickup tossed a Bureau of Indian Affairs (BIA) identification card at Depu ty Yarbrough, who caught it against his chest. Deputy Yarbrough noticed that M r. Pickup smelled like alcohol and suspected he may have been on drugs because alt hough Mr. Pickup was not staggering, he was acting strange. At the time, De puty Yarbrough was approximately 5’11” tall and weighed 180 pounds, wh ereas Mr. Pickup was- 4 -

approximately 6’4” and weighed 265 pounds. Deputy Yarbrough realized he could not physically handle Mr. Pickup and radioed for backup, whereupon Mr. Pickup told him, “you’re not going to need any fuck ing backup.” Deputy Yarbrough tried to calm Mr. Pickup. He obse rved Mr. Pickup’s intoxicated state and said that maybe he could give him a ride home. He asked Mr. Pickup to sit down on the curb and move closer to his cruiser, but Mr. Pickup said, “I ain’t sitting fucking nowhere.” Mr. Pickup then reached out and grabbed the BIA card from Yarbrough, grabbing the deputy’s protective vest and pulling on it. Deputy Yarbrough pushed Mr. Pickup off as h ard as he could, backed up, drew his weapon, and ordered him to get on the grou nd. He refused, cursed at Deputy Yarbrough and walked away. Yarbrough put aw ay his weapon, radioed for backup and called to Mr. Pickup, saying he shou ld just wait until the other officer arrived and that what happened was probablyno big deal. Mr. Pickup ignored Deputy Yarbrough and took off ru nning. As Mr. Pickup ran around the corner of the Orchid Paper bu ilding which had a light on it, Deputy Yarbrough thought he saw a silver locking bl ade knife in Pickup’s pocket. He followed Mr. Pickup and continued to radio for b ackup. The woman who had initially identified Mr. Pickup informed Deputy Yar brough that “there [was] another guy.” Deputy Yarbrough continued to followMr. Pickup down the side of the building, over a street, over two large stea m pipes and through an open- 5 -

field until he lost sight of Mr. Pickup around the corner of a building. Deputy Yarbrough rested for a minute and then conti nued in the direction he thought Mr. Pickup went. He saw Mr. Pickup go around a building about 85- 90 yards away, and ran to the building, pulled his weapon, and proceeded slowly around the corner. Mr. Pickup jumped from behind astack of wooden pallets and ran at him full speed, screaming he was “going to t ake [Yarbrough’s] gun and shove it up [Yarbrough’s] ass,” and that he was tir ed of cops “fucking with him.” Deputy Yarbrough ran backwards from Mr. Pickup, yel led at him to get on the ground and told him that he was too tired to fight. Mr. Pickup moved towards Deputy Yarbrough and threatened to take his gun. D eputy Yarbrough continued to back up. He pleaded with Mr. Pickup to get on t he ground and said he didn’t want to shoot but couldn’t back up anymore. Mr. Pi ckup continued to yell about Yarbrough’s gun and began moving his hands. DeputyYarbrough tried to shine his flashlight on Mr. Pickup’s hands to ascertain w hether he had a weapon but was unable to do so because Mr. Pickup’s hands were moving rapidly. Mr. Pickup approached toward Deputy Yarbrough again andbacked him up to the edge of the parking lot–approximately 60-75 yards f rom the stack of pallets. Again, he told Mr. Pickup to get on the ground and warned he would shoot if Mr. Pickup refused to comply. Mr. Pickup continued app roaching Deputy Yarbrough, reaching for Deputy Yarbrough’s weapon. When Mr. P ickup was approximately- 6 -

5-7 feet away, Deputy Yarbrough shot. Officer Justin Couch arrived on the scene moments b efore the gunshot. He observed a deputy backing up to the road and a pers on coming toward that deputy. Officer Couch observed the men were about 5-10 feetapart. As Officer Couch made a u-turn in his car, he heard a gunshot. He r adioed for an ambulance and ran to Deputy Yarbrough. Deputy Yarbrough told Off icer Couch that Mr. Pickup had something in his pocket. No weapon was found. The district court denied Deputy Yarbrough’s motionfor summary judgment on qualified immunity grounds. In the instant case, there were no witnesses to the actual shooting. The sequence of events took twenty-three minutes fr om Deputy Yarborough’s arrival on the scene until the fatal s hot was fired. The undisputed record reveals that Pickup was not armedand was shot from a distance of five to seven feet. Blossom adm its that there was a confrontation between Deputy Yarbrough and Pickup at Evans Electric, but does not admit Pickup was lunging. Aplt. App. 175. In addition to the failure to admi t certain facts, the district court also appears to have relied upon certain inconsiste ncies in Deputy Yarbrough’s testimony in denying summary judgment. The distric t court relied upon Carr v. Castle , 337 F.3d 1221, 1226-27 (10th Cir. 2003), which af firmed the denial of qualified immunity to police officers after conclud ing that a contrary holding would require a court to view the facts solely from the perspective of the officers. Deputy Yarbrough argues on appeal that (1) the district court erred as a- 7 -

matter of law in determining that a non-moving party’s failure to admit a material fact in and of itself creates a disputed fact for t he purposes of denying qualified immunity on summary judgment and (2) even if the co urt accepts Ms. Blossom’s view of the facts, she failed to show that Deputy Y arbrough violated a clearly established right.

Discussion Generally, a district court’s denial of summary jud gment is not immediately appealable. McFall v. Bednar , 407 F.3d 1081, 1086 (10th Cir. 2005). A district court’s denial of a summary judgment motion, howeve r, is subject to immediate appeal when the defendant is a public official asse rting qualified immunity and the issue appealed is one of law. Behrens v. Pelle tier , 516 U.S. 299, 312-13 (1996). That is, the scope of our inquiry is limit ed to legal challenges to the denial. Behrens , 516 U.S. at 312-13; McFall , 407 F.3d at 1086. We can reverse on an interlocutory basis if Ms. Blossom’s version of the facts does not amount to the violation of a clearly established right. Pere z v. Ellington , 421 F.3d 1128, 1131 (10th Cir. 2005). This is true even if some o f the facts are controverted. Johnson v. Martin , 195 F.3d 1208, 1213 (10th Cir. 1999). Where the district court has identified facts that it assumed in denying summary judgment, we generally lack jurisdiction to review underlying questions- 8 -

of evidentiary sufficiency. Johnson v. Jones , 515 U.S. 304, 318-19 (1995). Instead, the court of appeals usually takes the fac ts as assumed by the district court in conducting its review of pertinent legal q uestions. Id. at 319. Deputy Yarbrough makes a persuasive case that the d istrict court allowed Ms. Blossom to proceed to trial merely by refusing to admit that there is no countervailing evidence that her son lunged. Of co urse, Ms. Blossom has no personal knowledge of the events in question. In e quating the refusal to admit with the affirmative submission of conflicting evid ence, the district court was plainly wrong. See Anderson v. Liberty Lobby Inc. , 477 U.S. 242, 249 (1986); Celotex Corp. v. Catrett , 477 U.S. 317, 324 (1986). From a jurisdictional perspective, the question is whether a plaintiff may create a genuine issue of material fact by merely refusing to admit the facts which defendant supports by undisputed evidence without herself presenting any conflicting facts. Though the substantive answer is obvious, we need not determin e whether this question is a jurisdictionally permissible abstract question of l aw that may be resolved in a qualified immunity appeal. See Behrens , 516 U.S. at 313. Instead, we resolve the case on Deputy Yarbrough’s second argument, that th e shooting was objectively reasonable notwithstanding the district court’s ide ntification of various disputed facts. We review the district court’s denial of qualified immunity de novo. Id. ;- 9 -

McFall , 407 F.3d at 1086. Qualified immunity requires a court to ask (1) whether taken in the light most favorable to the plaintiff the facts alleged show the officer’s conduct violated a constitutional right, and if so, (2) whether the right was clearly established. Saucier v. Katz , 533 U.S. 194, 201 (2001); Philips v.
James , 422 F.3d 1075, 1080 (10th Cir. 2005); Lawrence v. Reed , 406 F.3d 1224, 1230 (10th Cir. 2005) (amplifying the Supreme Courttest with a three-part inquiry). We analyze the use of deadly force against a suspec t under the Fourth Amendment, which guarantees citizens the right to b e free from unreasonable searches and seizures. Terry v. Ohio , 392 U.S. 1, 8 (1968); Graham v. Connor , 490 U.S. 386, 388 (1989) (claims of excessive force in the context of arrests should be analyzed under the Fourth Amendment’s obj ective reasonableness standard); Tennessee v. Garner , 471 U.S. 1, 7 (1985). We evaluate reasonableness under the Fourth Amendment by examin ing the totality of circumstances of the particular seizure. Ohio v. R obinette , 519 U.S. 33, 39 (1996). A police officer may reasonably use deadlyforce to apprehend a fleeing suspect if the officer has probable cause to believ e that the suspect poses a serious threat of physical harm either to the offic er or others and if, where feasible, the police warn the suspect. See Garner , 471 U.S. at 11-12. We must assess reasonableness from the perspective of a rea sonable officer on the scene,- 10 -

“rather than with the 20/20 vision of hindsight,” a nd consider that “police officers . . . make split-second judgments–in circumstances that are tense, uncertain and rapidly evolving–about the amount of force necessary in a particular situation.” Graham , 490 U.S. at 396-97. Deputy Yarbrough’s account of what happened on the night of June 30, 2001, is largely uncontroverted. Ms. Blossom does not dispute the facts tending to show that her son engaged Deputy Yarbrough and w as confrontational and aggressive; that Deputy Yarbrough tried to diffuse the confrontation and warned Mr. Pickup several times to get on the ground; thatMr. Pickup was larger than the officer; that Deputy Yarbrough believed Mr. Pickup at the time to be drunk, high and possibly armed; that the deputy knew there were civilians nearby; that he was alone and in the dark; and that he shot Mr. Pickup from a distance of five to seven feet. This account is consistent with the forensic evidence and the testimony of Ms. Blossom’s own expert. None of the ostensibly controverted facts identifie d by the Ms. Blossom preclude a determination that the shooting was obje ctively reasonable. Even assuming that Mr. Pickup did not lunge at Deputy Yarbrough, Mr. Pickup repeatedly refused to comply with the reasonable re quests of law enforcement and continued his approach towards Deputy Yarbrough, ul timately reaching toward the deputy’s gun. The fact that Mr. Pickup was una rmed is not outcome- 11 -

determinative. We have previously rejected the arg ument that only a suspect armed with a deadly weapon poses a physical threat sufficient to justify use of deadly force. See Ryder v. City of Topeka , 814 F.2d 1412, 1419 n.16 (10th Cir. 1987). Even assuming “inconsistencies” in Deputy Y arbrough’s later deposition when compared with his more contemporaneous stateme nts about the incident, the more complete and detailed deposition does not cont radict, as to any material fact, the earlier statements. See Collins v. Jordan , 110 F.3d 1363, 1370 (9th Cir. 1996) (on qualified immunity appeal, court of appeals may consider legal question of whether a fact is material). In analyzing the reasonableness of Yarbrough’s use of force, we must also consider, as an element of the totality of the circ umstances test, whether the officer’s own “reckless or deliberate conduct durin g the seizure unreasonably created the need to use such force.” Jiron v. City of Lakewood , 392 F.3d 410, 415 (10th Cir. 2004) (quoting Sevier v. City of Law rence , 60 F.3d 695, 699 (10th Cir. 1995)). “Only events ‘immediately connected’ with the actual seizure may be considered, and ‘mere negligent actions precipitati ng a confrontation would not, of course, be actionable under §1983.’” Id. Ms. Blossom has argued, relying on an expert witness, that Deputy Yarbrough created th e need to use the deadly force by pushing Mr. Pickup after he grabbed his protecti ve vest, following Mr. Pickup without waiting for backup, not carrying and using a baton or OC spray to subdue- 12 -

Mr. Pickup, and not conducting a preliminary invest igation to discover Mr. Pickup’s nature and character. It is well settled that the “reasonableness standard does not require that officers use alternative, les s intrusive means” when confronted with a threat of serious bodily injury. Medina v. Cram , 252 F.3d 1124, 1133 (10th Cir. 2001) (internal quotations om itted). None of these actions or inactions Ms. Blossom identifies rise to the req uired level of recklessness. This case is readily distinguishable from Carrupon which the district court relied. In that case, the plaintiff relied on test imony that the officers fired eleven shots at the suspect after he had dropped a piece o f concrete that the officers claimed was a possible weapon. All eleven shots struck the decedent in the back!
Carr , 337 F.3d at 1225, 1227. The court in Carr , viewing the facts in the light most favorable to the plaintiff, determined that th ere was some evidence the officers shot an unarmed man who was not advancing on them. Id. at 1227 n.6. In this case, the evidence indicates uncertainty in the mind of Deputy Yarbrough as to whether Mr. Pickup was armed. Mr. Pickup adv anced on Yarbrough in what reasonably appears to be an effort to get his weapo n. Under these circumstances, Mr. Pickup posed an immediate threat to the safety of the officer, and the use of deadly force, while tragic, was reasonable.
REVERSED.03-5146, Blossom v. Yarbrough

HENRY, J. , concurring. Although it is close, I agree with the majority th at the objective reasonableness of the shooting entitles Deputy Yarb rough to qualified immunity. However, I do not think the district court was “pla inly wrong” in equating Ms. Blossom’s “refusal to admit with the affirmative su bmission of conflicting evidence.” Opinion at 7. I believe the district c ourt found other factual disputes from the incident independent of Ms. Blossom’s refu sal to admit that her son lunged at Deputy Yarbrough. In situations where the only witness to a fatal sho oting is an “interested” one, we should proceed with caution. Here, the dis trict court examined the testimony of Ms. Blossom’s expert and Officer Couch , along with the differing accounts of Deputy Yarbrough after the shooting andlater in his deposition. I believe it was appropriate to consider these factor s as presenting conflicting evidence and justifying additional fact-finding.